Ann M Hubbard v The Information Commissioner

These proceedings concern an application (the “Application”) under section 166(2) of the Data Protection Act 2018 (“DPA 2018”) for an order to progress the Applicant’s complaint to the Information Commissioner (“IC”) regarding a subject access request (“SAR”) made to Bank of Scotland t/a Birmingham Midshires (“the Bank”), reference IC-312259-F3N8.

The Applicant’s representative submitted a complaint to the IC on 6 June 2024 about concerns she had following delays by BOS in responding to her request for missing information.

26. On 2 August 2024, the IC’s case officer sent an email to the Applicant’s Representative acknowledging the complaint form, as well as further correspondence sent by the Applicant on 24 July 2024. The case officer noted that the Applicant had previously corresponded with the Bank and requested copies of any letters or emails the Applicant had sent to the Bank and copies of any letters or emails the Bank had issued in response which it had not yet received and without which it could not consider the complaint further. Further correspondence and information was provided by the Applicant’s representative during August 2024.

The IC’s case officer wrote to the Bank on 5 September 2024, requesting that they revisit the fact that the Applicant’s Representative had not received all the personal data in response to the SAR and requested that the Bank provide a response within 28 days. On the same day the case officer provided an update to the Applicant’s representative.

On 30 September 2024, the Bank emailed the case officer to advise that it would be unable to complete their investigation and draft a response within the time requested and sought an extension to respond. On 17 October 2024, the Bank provided a response to the case officer.

On 22 October 2024, the IC wrote to the Applicant’s representative stating that the IC was satisfied that the Bank was aware of its data protection obligations and, taking int account the time that had passed since the issue occurred, would not be taking any further action.

On 24 November 2024, the Applicant’s representative responded with comments on the IC’s letter. On 27 November 2024 the Applicant’s representative requested a further review of the handling of the Applicant’s data protection complaint.

On 17 December 2024 the IC again wrote to the Applicant’s representative to inform them that the reviewing officer was satisfied that the case officer had dealt with the complaint appropriately and in line with the IC’s case handing procedures. The case reviewing officer upheld the original outcome. The Applicant’s Representative was reminded of the right to pursue independent legal action against the Bank, and of his right to complain to the Parliamentary and Health Service Ombudsman (PHSO) if he was dissatisfied with the service received.

Following further correspondence, the IC again wrote to the Applicant’s representative on 24 March 2025 to inform them they had exhausted the IC’s internal complaints procedure of data protection complaint (IC-312259-F3N8) and the IC would not be considering the matter further.

On 19 November 2025, the Applicant’s representative applied to the Tribunal by way of form GRC1 (the “Application”). He stated that the outcome the Applicant was seeking was “I ask that the ICO issue the notice confirming that BOS are not compliant with the DPA as they did not provide the information they should following repeated requests having repeatedly stated it did not exist, until they provided selective data (a half an hour phone call) to suit their own agenda after 5 years.”

In the Application, the Applicant gave the following reasons:

“A complaint was made to the ICO about [the Bank] not responding to repeated SAR requests under the DPA and GDPR as they should. The ICO upheld complaint from us against [the Bank] in 2016 for not providing data as the ICO found [the Bank] were ‘Likely non-compliant as they had not looked hard enough’. Further repeated SARs have been made verbally and in writing to [the Bank] over a period of five years for additional Data since that time and specifically telephone calls they hold from 2019. It is factually evident that [the Bank] hold the calls requested, as in July 2024 a call that had been repeatedly specifically requested via SAR was without warning supplied by [the Bank] to suit their own agenda some 5 years after the call took place. The ICO have confused the current complaint with the previous upheld complaint and have become confused as to the current complaint and its content. The complaint is that [the Bank] were non-compliant with the DPA and GDPR in that following requests they did not provide the call, and other calls and written and electronic data still outstanding. The ICO has not correctly considered the complaint and have not issued the statutory notice of likely non-compliance which is a factual absolute offence under the act whatever mitigation [the Bank] may present, which in any event is not the concern of the ICO.”

The IC applied by way of form GRC5 dated 15 August 2025 to strike out the Application on the basis that the Tribunal has no jurisdiction to consider it under Rule 8(2)(a) and/or that there is no reasonable prospect of it succeeding (the “strike-out application”).

The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 38 to 42. The key points were as follows:

The Tribunal issued case management directions under Rule 8(4) on 29 August 2025 requiring the Applicant to provide any representations in relation to the strike-out application by 15 September 2025

The only response which the Tribunal has received is a brief email from the Applicant’s representative’s contact address (to which all papers have been sent) stating “We are currently travelling in Europe and have not received anything from the respondent so do not have any of the papers.” No evidence of travel was provided and no further response was received from the Applicant or her representative.

I am satisfied that the Applicant has been provided with an opportunity to provide representations in relation to the strike-out application and that it is reasonable and in the interests of justice to proceed to consider the application.

Section 165 DPA 2018 sets out the right of data subjects to complain to the IC about infringement of their rights under the data protection legislation. Under section 166 DPA 2018 a data subject can make an application to this Tribunal for an order as follows: 

“Orders to progress complaints

(1)

This section applies where, after a data subject makes a complaint under section 165 or Article 77 of the UK GDPR, the Commissioner -

a.

fails to take appropriate steps to respond to the complaint,

b.

fails to provide the complainant with information about progress on the complaint, or of the outcome of the complaint, before the end of the period of 3 months beginning when the Commissioner received the complaint, or

c.

if the Commissioner's consideration of the complaint is not concluded during that period, fails to provide the complainant with such information during a subsequent period of 3 months.

(2)

The Tribunal may, on an application by the data subject, make an order requiring the Commissioner -

a.

to take appropriate steps to respond to the complaint, or

b.

to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order.”

The Tribunal can only make an order under section 166(2) if one of the conditions at section 166(1)(a), (b) or (c) is met. There have been a number of appeal decisions which have considered the scope of section 166. It is clearly established that the Tribunal’s powers are limited to procedural issues, rather than the merits or substantive outcome of a complaint. 

Section 165 deals with the complainant’s right to make a complaint and states that: 

“(4)

If the Commissioner receives a complaint under subsection (2), the Commissioner must—

(a)take appropriate steps to respond to the complaint,

(b)inform the complainant of the outcome of the complaint,

(c)inform the complainant of the rights under section 166, and

(d)if asked to do so by the complainant, provide the complainant with further information about how to pursue the complaint.

(5)

The reference in subsection (4)(a) to taking appropriate steps in response to a complaint includes—

(a)investigating the subject matter of the complaint, to the extent appropriate, and

(b)informing the complainant about progress on the complaint, including about whether further investigation or co-ordination with  foreign designated authority is necessary.”

In the case of Killock v Information Commissioner [2022] 1 WLR 2241, the Upper Tribunal at paragraph 74 stated - "…It is plain from the statutory words that, on an application under section 166, the Tribunal will not be concerned and has no power to deal with the merits of the complaint or its outcome. We reach this conclusion on the plain and ordinary meaning of the statutory language but it is supported by the Explanatory Notes to the Act which regard the section 166 remedy as reflecting the provisions of article 78(2) which are procedural. Any attempt by a party to divert a tribunal from the procedural failings listed in section 166 towards a decision on the merits of the complaint must be firmly resisted by tribunals."

Mostyn J in the High Court in R (Delo) v Information Commissioner [2023] 1 WLR 1327, paragraph 57 - "The treatment of such complaints by the commissioner, as before, remains within his exclusive discretion. He decides the scale of an investigation of a complaint to the extent that he thinks appropriate. He decides therefore whether an investigation is to be short, narrow and light or whether it is to be long, wide and heavy. He decides what weight, if any, to give to the ability of a data subject to apply to a court against a data controller or processor under article 79. And then he decides whether he shall, or shall not, reach a conclusive determination...”. 

Mostyn J’s decision in Delo was upheld by the Court of Appeal ([2023] EWCA Civ 1141) – “For the reasons I have given I would uphold the conclusion of the judge at [85] that the legislative scheme requires the Commissioner to receive and consider a complaint and then provides the Commissioner with a broad discretion as to whether to conduct a further investigation and, if so, to what extent. I would further hold, in agreement with the judge, that having done that much the Commissioner is entitled to conclude that it is unnecessary to determine whether there has been an infringement but sufficient to reach and express a view about the likelihood that this is so and to take no further action. By doing so the Commissioner discharges his duty to inform the complainant of the outcome of their complaint.” (paragraph 80, Warby LJ). 

The decision of the Upper Tribunal in Cortes v Information Commissioner (UA-2023-001298-GDPA) which applied both Killock and Delo confirmed that the nature of section 166 is that of a limited procedural provision only. “The Tribunal is tasked with specifying appropriate “steps to respond” and not with assessing the appropriateness of a response that has already been given (which would raise substantial regulatory questions susceptible only to the supervision of the High Court)….As such, the fallacy in the Applicant’s central argument is laid bare. If Professor Engelman is correct, then any data subject who is dissatisfied with the outcome of their complaint to the Commissioner could simply allege that it was reached after an inadequate investigation, and thereby launch a collateral attack on the outcome itself with the aim of the complaint decision being re-made with a different outcome. Such a scenario would be inconsistent with the purport of Article 78.2, the heading and text of section 166 and the thrust of the decisions and reasoning in both Killock and Veale and R (on the application of Delo). It would also make a nonsense of the jurisdictional demarcation line between the FTT under section 166 and the High Court on an application for judicial review.” (paragraph 33). 

The case of Dr Michael Guy Smith v Information Commissioner [2025] UKUT 74 (AAC), noted at paragraph 60 that “it is for the Tribunal to decide, applying an objective test, if an “appropriate step” has been omitted, but observe that, in practice, that is unlikely to be the case where an ‘outcome’ has been produced. That is for two main reasons: first, because section 166 is a procedural provision and, as the principal mechanisms for enforcing rights or challenging the Commissioner are either claims against the data controller or judicial review of the Commissioner, section 166 should not be used to obtain ‘by the back door’ a remedy normally only available in those proceedings; secondly, because, if the Commissioner has already produced an outcome then, given the very wide discretion that the Commissioner has, both as to what and how to investigate and as to outcome, the scope for the Tribunal to say that an appropriate step has been omitted is limited.” In considering this the Tribunal must, as set out in paragraph 85 of Killick “when deciding objectively whether any (further) appropriate step needs to be taken by the Commissioner, take into account and give weight to the views of the Commissioner as an expert regulator.”

Paragraph 85 of Killick reads as follows: “However, in considering appropriateness, the Tribunal will be bound to take into consideration and give weight to the views of the Commissioner as an expert regulator. The GRC is a specialist tribunal and may deploy (as in Platts) its non-legal members appointed to the Tribunal for their expertise. It is nevertheless our view that, in the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations she should undertake into any particular issue, and how she should conduct those investigations. As Mr Milford emphasised, her decisions about these matters will be informed not only by the nature of the complaint itself but also by a range of other factors such as her own regulatory priorities, other investigations in the same subject area and her judgment on how to deploy her limited resources most effectively. Any decision of a Tribunal which fails to recognise the wider regulatory context of a complaint and to demonstrate respect for the special position of the Commissioner may be susceptible to appeal in this Chamber.”

 I am satisfied that that the IC’s letter to the Applicant dated 22 October 2024 both provided an outcome to the complaint and demonstrated that the IC had given consideration to whether there were other appropriate steps which could be taken to progress the Applicant’s complaint. This outcome was reinforced by the review outcome dated 17 December 2024 and further email dated 24 March 2025. It appears to me therefore that there were no further appropriate steps which the IC ought reasonably to have taken to progress the complaint.  In making this decision I have given significant weight to the view of the IC as the expert regulator that there were no further appropriate steps he should have taken.  

The Tribunal’s power to order progression of a complaint under section 166 is limited to ordering the Respondent to take appropriate steps to respond to a complaint, or to inform the complainant of progress or an outcome within a specified period.  Once that investigation has been concluded and an outcome provided, it follows that there is no longer an investigation in respect of which an order to progress can be made under section 166(2). Section 166 is limited to narrow procedural issues and there is no further procedural failing in respect of which the Tribunal can make a decision.

I also find that the Respondent was correct that any order for compliance under section 167 DPA must be pursued through the civil courts, not through this Tribunal. The remedy sought by the Applicant is therefore not available through proceedings under section 166 in this Tribunal.

I therefore find an outcome was provided to the Applicant’s complaint which means that the Tribunal has no jurisdiction to reopen the complaint or to order that it be reinvestigated or investigated in a particular way. I am also satisfied that there is no reasonable prospect of the case, or any part of it, succeeding because the remedy sought by the Applicant is not something which is within the Tribunal’s power to grant.

The proceedings are therefore struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with them and under Rule 8(3)(a) because there is no reasonable prospect of them succeeding.